Quality Education & Jobs Supporting I-16-2012 v. Bennett

SUPREME COURT OF ARIZONA

QUALITY EDUCATION & JOBS ) Arizona Supreme Court
SUPPORTING I-16-2012, a ) No. CV-12-0286-AP/EL
registered Arizona Political )
Committee, ) Maricopa County
) Superior Court
Plaintiff/Appellant, ) No. CV2012-011232
)
v. )
)
KEN BENNETT, Arizona Secretary ) O P I N I O N
of State and THOMAS HORNE, )
Arizona Attorney General, both )
in their official capacities, )
)
Defendants/Appellees.)
)
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable John Christian Rea, Judge

JURISDICTION ACCEPTED; RELIEF DENIED
________________________________________________________________

TORRES LAW GROUP Phoenix
By James E. Barton II
Attorney for Quality Education & Jobs Supporting I-16-2012
Committee

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Michele L. Forney, Assistant Attorney General
Attorney for Ken Bennett and Thomas C. Horne
________________________________________________________________

P E L A N D E R, Justice

¶1 Quality Education & Jobs Supporting I-16-2012 (“the

Committee”) challenged the Secretary of State’s descriptive

title and “yes/no” language used for that initiative

(“Proposition 204” or “the Act”) in the Secretary’s voter

information guide and ballot for the November 2012 general

election. The superior court rejected that challenge, finding

the language was “not arbitrary or unquestionably inaccurate”

and therefore substantially complied with A.R.S. § 19-125(D)

(2012). On August 28, 2012, we issued an order treating the

Committee’s appeal from that ruling as an appellate special

action, accepting jurisdiction but denying relief. This opinion

explains our reasoning.1

I.

¶2 The Committee filed this matter as an “expedited

election appeal,” contending that it could be filed directly in

this Court pursuant to Rule 8.1(h) of the Arizona Rules of Civil

Appellate Procedure. That rule, however, “applies only to

election-related cases designated by statute for expedited

consideration on appeal.” ARCAP 8.1 cmt. 1. This case does not

fall within that category. Neither § 19-125(D), on which the

Committee’s challenge was based, nor any other statute

authorizes an expedited appeal to this Court in this context.

Accordingly, we treat the matter as a special action and accept

jurisdiction because the purely legal issue raised is of

statewide importance, and there is no “equally plain, speedy,

1
On November 6, 2012, the voters rejected
Proposition 204. Ariz. Sec’y of State, State of Arizona
Official Canvas 18 (Dec. 3, 2012), available at
www.azsos.gov/election/2012/General/Canvass2012GE.pdf.

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and adequate remedy by appeal.” Ariz. R. P. Spec. Act. 1(a);

see Ariz. Legislative Council v. Howe, 192 Ariz. 378, 382 ¶ 10,

965 P.2d 770, 774 (1998).

II.

¶3 Proposition 204’s background is set forth in our

opinion in Tobin v. Rea, No. CV-12-0273-SA (Jan. 17, 2013), also

filed today. In short, the Committee and its supporters

collected approximately 290,000 signatures to place the

initiative on the 2012 general election ballot as Proposition

204. The Secretary prepared a descriptive title and summary of

the measure’s principal provisions pursuant to § 19-125(D),

which states, in relevant part:

There shall be printed on the official
ballot immediately below the number of the
measure and the official title of each measure a
descriptive title containing a summary of the
principal provisions of the measure, not to
exceed fifty words, which shall be prepared by
the secretary of state and approved by the
attorney general and that includes the following
or the ballot shall comply with subsection E of
this section:

A “yes” vote shall have the effect of
_________________.

A “no” vote shall have the effect of
__________________.

The blank spaces shall be filled with a
brief phrase, approved by the attorney general,
stating the essential change in the existing law
should the measure receive a majority of votes
cast in that particular manner. In the case of a

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referendum, a “yes” vote shall have the effect of
approving the legislative enactment that is being
referred. The “yes” and “no” language shall be
posted on the secretary of state’s website after
being approved by the attorney general and before
the date on which the official ballots and the
publicity pamphlet are sent to be printed.

A.R.S. § 19-125(D).

¶4 After consulting with the Attorney General and

receiving input from the initiative’s proponents, the Secretary

settled on the following language for the general election guide

(or “publicity pamphlet”) and ballot:

Proposition _______
PROPOSED BY INITIATIVE PETITION RELATING TO TAXATION.
[I-16-2012]

EFFECTIVE JUNE 1, 2013, PERMANENTLY INCREASES THE
STATE SALES TAX BY ONE CENT PER DOLLAR FOR THE
PURPOSE OF FUNDING EDUCATIONAL PROGRAMS, PUBLIC
TRANSPORTATION INFRASTRUCTURE PROJECTS, AND HUMAN
SERVICES; FORBIDS REDUCTIONS TO CURRENT K-12 AND
UNIVERSITY FUNDING LEVELS; AND FORBIDS REDUCTIONS
TO THE CURRENT STATE SALES TAX BASE.

A “yes” vote shall have the effect of permanently
increasing the state sales tax by one cent per
dollar, effective June 1, 2013, for the purpose
of funding educational programs, public
transportation infrastructure projects, and human
services. It forbids reductions to current K-12
and university funding levels and forbids
reductions to the current state sales tax base.

A “no” vote shall have the effect of not
increasing the state sales tax by one cent per
one dollar, beginning June 1, 2013.

¶5 The Committee argues that the Secretary’s description

violates § 19-125(D) by “falsely characterizing the Act as a tax

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increase” and “exaggerating the limitation on the Legislature

contained in the Act.” The Committee’s preferred language would

have stated that the Act “replac[es] the temporary one cent per

dollar sales tax set to expire on June 1, 2013 with a permanent

one-cent sales tax,” and “forbids reductions to the current

sales tax base applicable to the one-cent sales tax.” The

Committee further contends that the superior court erred by

failing to apply “the same substantial compliance review that

Arizona courts apply to the Legislative Council’s analysis”

under A.R.S. § 19-124(B) (2012). We are not persuaded.

¶6 Of the cases the Committee cites, only Howe involved a

challenge to the Secretary of State’s descriptive title and

“yes/no” language used in the publicity pamphlet and ballot

regarding a referendum proposal. There, the superior court

concluded that the Secretary “failed to comply with A.R.S. § 19-

125” in those respects. Howe, 192 Ariz. at 382 ¶ 8, 965 P.2d at

774. In overturning that ruling, this Court found that the

Secretary substantially complied with the statutory requirements

by using language that “can reasonably be regarded as an attempt

to provide necessary and appropriate information to the voting

public.” Id. at 384 ¶ 22, 965 P.2d at 776. “Giving due

deference” to the Secretary, we could not say that the chosen

language was, “as a matter of law, so overemphasized as to be

misleading, inaccurate, lacking in neutrality, or

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argumentative.” Id. ¶ 19.2

¶7 We reach the same conclusions here regarding the

Secretary’s descriptive title and “yes/no” language used for

Proposition 204. We agree with the Committee that the Secretary

may not use language that is false or clearly misleading. But

we disagree with the Committee’s assertion that the Secretary’s

description of the Act “as a tax increase is unquestionably

inaccurate.” As noted in Tobin, “[t]hough ‘fairly debatable,’

. . . the initiative’s proposed tax may fairly be described as a

‘new’ or additional ‘tax increase,’” and such a description “is

neither inaccurate nor partial.” Slip op. at 11 ¶ 17 (“[T]he

initiative proposes statutory changes that would impose a new,

permanent, and legislatively unalterable tax, the revenues of

which would be directed to different and broader uses than those

under the current, constitutionally-imposed temporary tax.”).

¶8 In Tobin, we required modification of the Legislative

Council’s analysis not because it characterized the Act as

imposing a new tax increase, but only because it did not satisfy

§ 19-124(B)’s impartiality requirement, as explicated in this

Court’s case law. Absent any explanatory context, the Council’s

analysis was “not completely ‘free from any misleading

2
For the same reasons, we rejected the challenge under
A.R.S. § 19-124(B) to the Legislative Council’s analysis of the
referendum proposal. Howe, 192 Ariz. at 384 ¶¶ 18-20, 22, 965
P.2d at 776.

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tendency.’” Id. ¶ 18 (quoting Fairness & Accountability in Ins.

Reform v. Greene, 180 Ariz. 582, 590, 886 P.2d 1338, 1346

(1994)). Accordingly, the analysis could not be viewed as “a

completely neutral summary, without advocacy or argument.” Id.

slip op. at 12 ¶ 19 (quoting Citizens for Growth Mgmt. v.

Groscost, 199 Ariz. 71, 73 ¶ 11, 13 P.3d 1188, 1190 (2000)).

Nor did it lack any hint of “partisan coloring.” Id. slip op.

at 9 ¶ 13 (quoting Greene, 180 Ariz. at 590, 886 P.2d at 1346).

¶9 The statute at issue here, § 19-125(D), does not

expressly require an “impartial analysis” of the proposed

measure, as does § 19-124(B). And although the Legislative

Council’s analysis “shall be written in clear and concise

terms,” it is not subject to any word or page limit. A.R.S.

§ 19-124(B). In contrast, the Secretary is obligated to

summarize, in no more than fifty words, “the principal

provisions of the measure,” followed by a “brief phrase . . .

stating the essential change in the existing law” should the

measure be approved. Id. § 19-125(D). The measure here,

Proposition 204, spanned fourteen single-spaced pages and

contained detailed and relatively complicated language regarding

state sales tax and related provisions. The length and

complexity of the initiative, and the constraints prescribed in

§ 19-125(D), are factors in assessing compliance with that

statute.

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¶10 The Committee aptly notes that, compared to the

Council’s analysis, the Secretary’s ballot language arguably is

more important because it might be the last or only description

the electorate sees before voting on the measure. But given the

different requirements and purposes of §§ 19-124 and 19-125, we

are disinclined to equate the statutory standards or import

wholesale our jurisprudence relating to the former statute in

interpreting the latter. Although § 19-125(D) does not permit

the Secretary to use false or clearly misleading language, the

“tax increase” language he used in the publicity pamphlet and

ballot cannot be characterized as such.

¶11 We likewise do not find false or clearly misleading

the Secretary’s statement that the Act “forbids reductions to

the current state sales tax base.”3 The Committee challenges

that language as incorrectly “describ[ing] a measure that

prohibits altering a portion of the tax base as prohibiting

altering the entire tax base.” According to the Committee, the

Secretary’s “yes/no” language suggests that the Act “limits all

alterations to the tax base” and, therefore, violates the

statutory requirement by failing to “stat[e] the essential

change in the existing law should the measure receive a majority

3
The Committee does not challenge as inaccurate or
misleading the Secretary’s statement that the Act “forbids
reductions to current K-12 and university funding levels.”

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of votes cast in that particular manner.” A.R.S. § 19-125(D).

¶12 As with the Secretary’s “tax increase” language to

which the Committee objects, the meaning of his “sales tax base”

language is fairly debatable and potentially subject to

differing interpretations. But that does not mean the language

fails to comply with § 19-125(D). The Secretary’s summary

begins by stating that the Act “permanently increases the state

sales tax by one cent per dollar.” In context, the language

that follows, regarding the “current state sales tax base” to

which the Act forbids reductions, could be read as referring to

the aforementioned “one cent per dollar” portion of the sales

tax base.4 Our task is not to determine whether that is the

only, or even the most reasonable, interpretation of the

language used. Rather, because the Secretary’s language is

neither false nor clearly misleading, and because it “can

reasonably be regarded as an attempt to provide necessary and

appropriate information to the voting public,” we find that it

substantially complies with § 19-125(D). Howe, 192 Ariz. at

4
In Tobin, although we found the issue “close,” the
Legislative Council was required to modify its description of
restrictions on adjusting the sales tax base. Slip op. at 14
¶ 22. But we found “particularly significant” that “the
Council’s analysis refer[red] to ‘sales tax’ as broadly meaning
‘the transaction privilege tax and the use tax,’ without
limiting it to the additional one percent sales tax that the
initiative would impose.” Id. slip op. at 13–14 ¶ 21. No such
misleading and fatal flaw appears in the Secretary’s language at
issue here.

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384 ¶ 22, 965 P.2d at 776.

III.

¶13 We have no more appetite for enmeshing ourselves in

quarrels regarding the Secretary’s compliance with § 19-125(D)

than in disputes over the Council’s compliance with § 19-124(B).

As the superior court correctly observed regarding the areas of

contention here, however, the parties each raised “legitimate

points,” and neither side’s position “is irrational or

frivolous.” The court did not abuse its discretion or otherwise

err in finding that the Secretary’s language substantially

complies with § 19-125(D). See Ariz. R. P. Spec. Act. 3(c).

Accordingly, we accept special action jurisdiction but deny

relief.

___________________________________
A. John Pelander, Justice

CONCURRING:

___________________________________
Scott Bales, Vice Chief Justice

___________________________________
Robert M. Brutinel, Justice

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